CPPM and National Disability Insurance Agency

CPPM and National Disability Insurance Agency [2023] AATA 2845 (7 September 2023)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number: 2021/5234
Re:CPPM
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Senior Member K. Parker
Date:7 September 2023
Place:Melbourne

The Tribunal affirms the decision under review.
...............................[sgd].........................................
Senior Member K. Parker
Catchwords
NATIONAL DISABILTY INSURANCE SCHEME – access request – whether access criteria under s 21 of the National Disability Insurance Scheme Act 2013 (Cth) are met – section 24 “disability requirements” – section 25 “early intervention requirements” – Applicant has a disability arising from various impairments – whether impairments are, or likely to be, permanent – whether impairments have resulted in substantially reduced functional capacity in any one of the six prescribed activities – whether recommended supports are more appropriately funded through other general systems of service delivery – decision under review affirmed
Legislation
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)
Cases
Australian Prudential Regulation Authority v TMeffect Pty Ltd [2018] FCA 508
National Disability Insurance Agency v Davis [2022] FCA 1002
National Disability Insurance Agency v Foster [2023] FCAFC 11; 295 FCR 521
Secondary Materials
National Disability Insurance Agency, NDIS Operational Guidelines: Applying to the NDIS (Guidelines, 26 July 2023) (Access Guidelines)
REASONS FOR DECISION
Senior Member K. Parker
7 September 2023
INTRODUCTION

The Applicant, CPPM, is seeking access as a participant in the National Disability Insurance Scheme (NDIS) under s 18 of the National Disability Insurance Act 2013 (Cth) (NDIS Act).
For the reasons set out below, the Tribunal affirms the decision under review because the Tribunal concludes that CPPM does not meet the access criteria under s 21 of the NDIS Act.
LEGISLATIVE FRAMEWORK
Section 18 of the NDIS Act provides that a person may request access to the NDIS. Upon doing so, a decision will be made as to whether the person meets the access criteria.
Section 21 of the NDIS Act provides that a person satisfies the access criteria if they meet:
(a)      the “age requirements” under s 22;
and, at the time of considering the access request;
(b)      the “residence requirements” under s 23 of the NDIS Act; and
(c)      either the:
(i)        “disability requirements” under s 24; or
(ii)      “early intervention requirements” under s 25.
BACKGROUND
CPPM is a 63-year-old man. His parents passed away when he was young. His father died of a workplace accident when CPPM was a baby, and his mother died of severe rheumatoid arthritis when he was aged 11. CPPM said he has one aunt remaining, who is aged 100. CPPM is an only child. He says he has some cousins but will seldomly see them. He said he has one cousin in Adelaide to whom he speaks on the telephone regularly. He said this cousin will visit sometimes, and CPPM might join him “for dinner or something”. Following questions by the Tribunal on the second day of the hearing, CPPM also disclosed that he was married previously and that he has a daughter. He said his daughter has a disability. He said he has not seen his daughter for about ten years.
CPPM used to work on a cattle station with horses as an “ex-ringer/cowboy”.[1] CPPM has not worked in this occupation for about 30 years. He fell off a horse and injured himself in the 1980s and then ceased work in about 1992. CPPM owned a horse until about three years ago when it died. He told the Tribunal that he did not ride this horse.
[1] Joint Hearing Tender Bundle (JHTB), R2/128. The JHTB was lodged with the Tribunal by the NDIA following consultation with CPPM.
Since about 1992, CPPM has been on the disability support pension (DSP) which has been his major source of income for the last 31 years.
CPPM occasionally works as a cricket umpire, less so now than he did in the past. He told the Tribunal that he will umpire women’s cricket matches and that they usually only last for about one hour. CPPM said that he had umpired the women’s cricket grand final at the end of the 2023 cricket season (in about March 2023). He said it was a short game (less than 20 minutes). CPPM says it is his intention to umpire during the next cricket season, once it begins later this year. He said he receives income for umpiring of about $30 per game.
CPPM enjoys playing the drums. He used to play in a band. He said he played the drums much less now, than he did in the past. CPPM said he still plays the drums “occasionally” and will do so “very carefully”. He explained that he does not bash the drums or “do drum rolls” like he used to. Instead, he said he will play the drums “softly”.
CPPM looks after three dogs. Two of the dogs belong to CPPM and the other one is his landlord’s “rescue” dog. CPPM said he is required to feed the “rescue” dog when the landlord and her husband are away. CPPM also has seven or eight cats. One of them belongs to CPPM and he said that the other six or seven of the cats live outside of the caravan and he will feed them. CPPM said he also has two ducks, and about 40 to 50 poultry (chickens/roosters). CPPM told the Tribunal that his landlord was involved in rescuing animals, but that he is the one who usually ends up looking after and feeding them.
CPPM currently owns a car and has a driver’s licence. He said he can drive, provided it is not for too long of a distance. He said he drives himself into town to pick up shopping, other supplies as required, and drives himself to medical and other appointments. On the second day of the hearing, after questioning by the Tribunal, CPPM referred to making trips to Adelaide and that he would take rest breaks. Adelaide is about 400 km from the place where CPPM lives.
CPPM gave evidence that the last time he had been on a trip to Renmark, South Australia, was about five years ago. CPPM was questioned about a reference in the medical records of Dr AP, being one of CPPM’s former general practitioners, to CPPM having visited South Australia in 2020. CPPM changed his evidence and confirmed that those trips were made to Renmark at this time. Renmark is about 140 km from where CPPM lives. When asked how he made those trips, he said that his friend would drive him.
At the hearing, CPPM was asked about his living arrangements. He confirmed that he was living in a caravan on a property owned by his landlord. CPPM said the property has two houses on it. CPPM’s landlord and her husband lived in one of the houses, and the other house is a derelict house. CPPM said his caravan is located nearby the derelict house. CPPM said he has been living there for the last five years. CPPM said there is a shed located nearby the caravan, which has a shower and laundry in it. CPPM said that he accesses and uses those facilities in the shed.
CPPM confirmed that he has made an application for public housing and has been offered a public housing unit. He said he declined this offer, because he would have to park his car out on the street. He said he was entitled to receive two public housing offers and had not heard back about a second offer.
CPPM was asked during cross-examination about the previous housing issue that arose in 2020 when he was reportedly asked to relocate. CPPM said he had had an argument with his landlord’s daughter. He said he had not seen the landlord’s daughter since that time. He confirmed there was no present request by his landlord that he leave the property. He said, “if something happened to them, I’ve got nowhere to live”. CPPM said he has known the landlord since 1978. She and her husband are aged in their 80’s. CPPM is concerned that his landlord may have dementia.
Request for access under s 18 of the NDIS Act
CPPM said that he has impairments arising from several past injuries and his medical conditions. These impairments have affected the use of his back, shoulders, arms (right arm and hand, more so than his left), and left lower limb. He also referred to the debilitating affect that the pain has on him and that, at times, it makes him feel “down”, frustrated, and angry that he cannot do what he was once able to do. CPPM manages his pain by taking Panadeine Forte, an opioid medication, and by laying down.
When Dr AP discovered that CPPM had been driving to Renmark to obtain scripts for Panadeine Forte, he became concerned that CPPM might be addicted to this opioid medication. In July 2020, he referred CPPM to the Pain Rehabilitation Team (PRT) at the Sunraysia Community Health Service (SCHS). The PRT coordinator/registered nurse (PRT Coordinator), Ms PH, an occupational therapist (OT), and a physiotherapist from SCHS all undertook assessments of CPPM. The PRT Coordinator booked CPPM in to see a specialist pain physician.
On 6 November 2020, in a SCHS Management Plan for CPPM the Coordinator made a treatment recommendation which included engagement with Intereach to “explore NDIS availability”.[2] Arrangements were made for Ms PH to prepare a functional assessment report which she did on 10 March 2021 (Ms PH’s Report). Within days of doing so, CPPM was discharged from the PRT service, purportedly because he was dealing with housing security issues and due to his wish to prioritise dealing with those issues over receiving any further treatment by the allied health specialists and physicians at SCHS.
[2] Ibid, R1/90.
CPPM did not subsequently move out of his caravan. CPPM did not “re-refer” himself to the PRT, as he was invited to do so.[3]
[3] Ibid, A4/10.
In about 14 May 2021, CPPM made an access request under s 18 of the NDIS Act by submitting a NDIS Access Request Form with the NDIA (Access Form). One section of this form was completed by CPPM and the other section was completed by Dr AP. Dr AP stated on the Access Form that he had been treating CPPM for about two years. CPPM also submitted to the NDIA:[4]
(a)extract from report by Dr AR, Consulting Surgeon, addressed to Gallagher, Ryan & Maloney, Barristers & Solicitors, dated 12 April 1994 (Dr AR’s Report);
(b)an access request form by Dr AP dated 9 October 2020;
(c)Ms PH’s occupational therapy report dated 10 March 2021.
[4] T-Documents T1A/13.
On the Access Form, CPPM stated that:
(a)his main disability is “spinal stenosis”;
(b)his other disabilities are “both shoulders worn out” and that he had a “broken right hand”; and
(c)his disability was caused from a fall from a horse in about 1980.[5]
[5] T-Documents T3/38.
Dr AP stated on the Access Form that CPPM’s “primary disability” and “any secondary disabilities” included “Chronic Pain (from previous history of spinal stenosis – no report available)”. Dr AP states that CPPM’s current treatment included “– Pain Clinic – Exercise Physiologist – Analgesia as needed”. Dr AP states that ongoing access to a psychologist and exercise physiologist is likely to remedy the impairment.[6]
[6] Ibid, T3/42.
Dr AP stated on the Access Form that CPPM does not need assistance in relation to the following activities:[7]
(a)mobility/motor skills;
(b)communication;
(c)learning;
(d)self-care; and
(e)self-management.
[7] Ibid, T4/42-44.
Dr AP stated that CPPM required assistance from other persons in relation to the activity of “social interaction”, indicating on the Access Form that CPPM had minimal social contacts and may benefit from joining a men’s group or having a support person.[8]
[8] Ibid, T3/43.
Request of access not granted – 28 May 2021
On 28 May 2021, a delegate of the Chief Executive Officer (CEO) of the NDIA decided not to grant CPPM’s access request (Original Access Decision). The delegate was satisfied that CPPM met the “age requirements” and the “residency requirements” under ss 22 and 23 of the NDIS Act, respectively. The delegate was not satisfied that CPPM met the disability requirements under s 24(1) of the NDIS Act, because his impairment(s) are not, or not likely to be, permanent. The delegate focussed on CPPM’s chronic pain due to his history of spinal stenosis and found that the information provided does not indicate that CPPM had explored all available and appropriate treatment options (without specifying what they are) likely to improve his disability. For the same reason, the delegate found that the early intervention requirements under s 25 of the NDIS Act had not been met. The delegate found that CPPM’s other reported disabilities (not specified by the delegate) did not meet either the disability requirements or the early intervention requirements.
CPPM sought an internal review of the Original Access Decision by a “reviewer” under s 100 of the NDIS Act.
Internal review decision - 29 July 2021
On 29 July 2021, a “reviewer” made a decision under s 100 of the NDIS Act confirming the Original Access Decision, specifically, that the access criteria under s 21 of the NDIS Act are not met in CPPM’s case (Internal Review Decision, which is the Decision Under Review). The “reviewer” stated in the Internal Review Decision that she:
(a)was not satisfied that CPPM had met the disability requirements under s 24 of the NDIS Act;
(b)was satisfied subs-s 24(1)(a) had been met in regard to CPPM’s “chronic pain from spinal stenosis and bilateral shoulder pain”, and his impairments arising from the spinal stenosis are, or likely to be, permanent (and therefore, met the criterion under sub-s 24(1)(b)), but this was not so in relation to CPPM’s impairments arising from his bilateral shoulder condition. Instead, the “reviewer” concluded that “[t]he evidence tendered does not demonstrate detailed information from your treating specialist pertaining to the treatment modalities undertaken, the length of treatment, the level of engagement with treatment, the outcomes or prognosis”;[9]
(c)was not satisfied that any one or more of CPPM’s impairments have resulted in “substantially reduced functional capacity” in any one of the six activities prescribed in sub-s 24(1)(c) of the NDIS Act. The “reviewer” acknowledged the functional impact of CPPM’s bilateral shoulder pain but stated that she was unable to take this impairment into account, because she was not satisfied that it is, or likely to be, permanent. Further, the “reviewer” found that the evidence did not demonstrate that CPPM’s “physical impairments” had resulted in a substantially reduced functional capacity because she considered that the evidence does not indicate that CPPM usually required the support or intervention of another person, assistive technology (AT), disability equipment or home modifications, to “successfully complete” any of the six prescribed activities. There are no particulars given as to the basis for her conclusion in this regard. The “reviewer” stated that she was not satisfied that CPPM is likely to require lifetime support of the NDIS in relation to his chronic pain and spinal stenosis, based on the evidence provided, and given all of the criteria under sub-s 24(1) had not been met; and
(d)found that the early intervention requirements under s 25 of the NDIS Act had not been met “[d]ue to the longstanding nature” of CPPM’s impairment in regard to his chronic pain from spinal stenosis, in that “providing support now would not be considered early intervention”; or that the evidence did not indicate that early intervention supports was likely to benefit CPPM by achieving one or more of the prescribed outcomes listed in sub-s 25(1)(c) of the NDIS Act. The “reviewer” found that the evidence submitted did not demonstrate that the NDIS was the most appropriate support system. However, the “reviewer” did not specify the early intervention supports considered by her, when assessing whether these criteria were met.
[9] Ibid, T1A/15.
Regarding sub-s 25(3) of the NDIS Act, the “reviewer” did not refer to or undertake any comparison of alternative systems of support potentially available to CPPM. The “reviewer” simply found that “[t]he evidence submitted does not demonstrate that the NDIS is the most appropriate support system” and concluded that CPPM does not fulfil the early intervention requirements.
AAT application for review
On 3 August 2021, the Tribunal’s Registry staff assisted CPPM, at his request, to lodge an online AAT Application for Review of Decision form with the National Disability Insurance Scheme Division of the Tribunal, seeking review of the Internal Review Decision.
EVIDENCE AND SUBMISSIONS
On 19 August 2021, the NDIA lodged a set of documents with the Tribunal pursuant to its obligations under s 37 of the AAT Act (T-Documents).
On 19 May 2023, pursuant to the Tribunal’s directions, the NDIA lodged a Joint Hearing Tender Bundle (JHTB), in consultation with CPPM.
CPPM was supported at one stage in this proceeding by a disability advocate from the Rights Information & Advocacy Centre Inc (RIAC). RIAC assisted CPPM to prepare an (unsigned) Statement of Lived Experience dated 10 November 2021 (SLE). CPPM was asked by the Tribunal about this SLE at the hearing. CPPM said he was unaware of it at first. CPPM was taken to the SLE at the hearing and asked if he agreed with it. He began to read through it and said he did not agree to adopt its contents. He said it had been written by someone else and the writer had used words that he would not. On that basis, the Tribunal indicated to the parties that it would not receive the SLE into evidence and instead, take evidence directly from CPPM as the hearing progressed, as to what he could or could not do (in relation to activities of daily living). CPPM was content with this approach and the NDIA did not object.
On 10 July 2023, pursuant to the Tribunal’s directions, the NDIA lodged a Supplementary Joint Hearing Tender Bundle (Supplementary JHTB).
Pursuant to the Tribunal’s directions, CPPM lodged the following further documents:
(a)on 6 July 2023, three photographs of the inside of his caravan, as had been requested by the Tribunal on the first day of the hearing;[10]
(b)on 6 July 2023, undated report from Mildura Base Hospital about the cricket ball injury to CPPM’s right hand and wrist;[11]
(c)on 6 July 2023, entire report of Dr AR’s Report about CPPM’s physical incapacities;[12]
(d)on 10 July 2023, X-ray report in respect of CPPM’s left elbow, dated 3 July 2023;[13] and
(e)further radiological reports received from I-MED Radiology Network on 16 August 2023.[14]
[10] Exhibit A8. The photographs were requested because the OT who conducted an independent assessment of CPPM did not enter his caravan. At the hearing, the OT said she elected not enter the caravan and so it was agreed with CPPM that the assessment would be undertaken at a nearby park.
[11] Exhibit A5.
[12] Exhibits A6. The last two pages of this report were originally contained in the T-Documents (T7/56-57) but the first page was missing.
[13] Exhibit A7.
[14] Exhibits A9 to A12.
The Tribunal conducted a substantive hearing by telephone over three separate days on 5, 13 and 18 July 2023 to allow appropriate breaks for the consideration of additional documentation lodged by the parties during the course of the hearing, and rest breaks on account of CPPM’s pain and fatigue levels. CPPM attended the hearing by telephone as he stated he did not have the ability to join by video. An in-person hearing was not feasible due to the remote location of CPPM and his stated inability to drive long distances.
Independent assessments by Consultant Physician and OT
The NDIA arranged for two medico-legal experts to assess CPPM.
The first expert was Associate Professor (A/Prof) DC, Consultant Physician, who issued a medical report dated 22 August 2022 (A/Prof DC’s Report). A/Prof DC conducted a telehealth assessment of CPPM on 15 August 2022. A/Prof DC was not called to give evidence at the hearing, nor was any request made by CPPM to cross-examine this expert.

The second expert was Ms MB, OT, who assessed CPPM on 17 November 2022. Ms MB issued a functional capacity report dated 3 February 2023 (Ms MB’s Report). Ms MB was called to give evidence on the first day of the hearing and she did so by telephone.
ISSUES
The NDIA accepts that CPPM meets both the “age requirements” and “residence requirements” under ss 22 and 23 of the NDIS Act, respectively. There was no evidence to the contrary. The Tribunal finds accordingly.
The issues arising for determination by the Tribunal in this application are:
(a)whether CPPM meets the “disability requirements” under s 24 of the NDIS Act; or
(b)whether CPPM meets the “early intervention requirements” under s 25 of the NDIS Act.
CPPM was unrepresented in this proceeding. On the first day of the hearing, CPPM confirmed that he wanted all of his impairments to be assessed for the purpose of gaining access to the NDIA. Potentially, this might encompass his claimed physical impairments and the earlier references to his mental health issues. CPPM was taken to Ms MB’s report, which referred to CPPM having “depression”.
The Tribunal sought to clarify with CPPM whether he was relying upon impairment attributable to any psychosocial conditions in support of his request to access the NDIA. CPPM said he feels depressed at times because “I’m sick and tired of needing to sit and relax and he is not allowed to do things”. He said that sometimes he feels like “the world is against him”. When asked what he meant by this, he said “there is always something”, such as needing to take the dogs out because they are barking, needing to catch the newly-hatched 11 chicks, needing to go to the doctors, the car will not start, it rains and his back aches, or needing to deal with a leak in the caravan and needing to call State Emergency Service (SES) to arrange for them to place a tarp over it.
CPPM was questioned about whether he was taking any anti-depressant medication. He said “they” had given him Endep, but it has not helped. He was asked if he had received any counselling or therapy from a psychologist. CPPM said he had spoken to “someone” but they would not help him when he asked them to, so this therapy ended.
CPPM was further questioned about his reported mental health issues. He played down the seriousness of them. He said he was not having any treatment at present, indicating to the Tribunal that he did not think he was a candidate for psychological counselling. The Tribunal asked CPPM on the second day of the hearing whether he considered that he had an ongoing psychosocial disability or depression. He said he did not.
CPPM gave evidence that he experiences at times, feeling down, frustration, and angry at his situation, as well as experiencing ongoing insomnia. However, there is no definitive evidence of a diagnosis having been made by a suitably qualified health professional of CPPM having depression, anxiety, or any other psychosocial condition. While there are some indicators that CPPM struggles with his mental health from time to time, the Tribunal is not satisfied that those issues have resulted in “one or more impairments to which a psychosocial disability is attributable” as required by sub-s 24(1)(a) of the NDIS Act. CPPM’s own evidence is that his main problems arise from his Claimed Physical Impairments (as defined in paragraph [44] below) and, primarily, his spinal stenosis affecting his left leg function and the injury which had affected his right hand/wrist.
CPPM confirmed at the hearing that he relies upon the physical impairments of his back, shoulders, upper limbs (in particular, his right hand/wrist), and his left lower limb, caused by his various medical conditions and the pain he experiences (Claimed Physical Impairments) for the purpose of assessing of whether he meets the NDIS access criteria, and not any impairment arising from a psychosocial disability. The Tribunal will make its assessment as to whether CPPM meets the access criteria on this basis.
ACCESS RULES AND POLICY GUIDANCE
Section 209(1) of the NDIS Act provides that the Minister may, by legislative instrument, make rules prescribing matters required or permitted under the NDIS Act, or necessary or convenient to be prescribed, in order to carry out or give effect to the NDIS Act. Section 27 of the NDIS Act permits the Minister to make NDIS rules prescribing circumstances in which or criteria to be applied in assessing whether any of the disability or early intervention requirements are met under ss 24 or 25 of the NDIS Act.
Pursuant to s 209(1), in conjunction with s 27, the Minister has issued the following rules by legislative instrument: National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (Access Rules).
On 26 June 2023, the NDIA updated its policy guidance dealing with the assessment of whether a person meets the disability or early intervention requirements under ss 24 or 25 of the NDIS Act: Applying to the NDIS (Access Guidelines).[15] The Tribunal will take this policy guidance into account when making this decision, unless there are cogent reasons not to do so, for instance, if the policy guidance is inconsistent with the provisions of the NDIS legislative regime.
[15] National Disability Insurance Agency, NDIS Operational Guidelines: Applying to the NDIS (Guidelines, 26 July 2023) <
CONSIDERATION OF WHETHER CPPM MEETS THE “DISABILITY REQUIREMENTS”
The “disability requirements” under s 24 of the NDIS Act are made up of five mandatory criteria as follows:
24 Disability requirements
(1)       A person meets the disability requirements if:
(a)the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable; and
(b)the impairment or impairments are, or are likely to be, permanent; and
(c)the impairment or impairments result in substantially reduced functional capacity to undertake one or more of the following activities:
(i)        communication;
(ii)       social interaction;
(iii)      learning;
(iv)      mobility;
(v)       self-care;
(vi)      self-management; and
(d)the impairment or impairments affect the person’s capacity for social or economic participation; and
(e)the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime.
(2)For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the variation.
(3)For the purposes of subsection (1), an impairment or impairments that are episodic or fluctuating may be taken to be permanent, and the person may be taken to be likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the episodic or fluctuating nature of the impairments.
(4)Subsection (3) does not limit subsection (2).
The NDIA accepts that CPPM satisfies sub-ss 24(1)(a), (b), and (d) of the NDIS Act in respect of the Claimed Physical Impairments, except for CPPM’s right hand/wrist which the NDIA does not consider to be, or likely to be, permanent. The NDIA contends that CPPM does not satisfy sub-s 24(1)(c) of the NDIS Act because it contends that any one or more of CPPM’s Claimed Physical Impairments have not resulted in a “substantially reduced functional capacity”, in any one or more of the six prescribed activities listed in sub-s 24(1)(c) of the NDIS Act. CPPM disagrees and contended at the hearing that he has a substantially reduced functional capacity in each of the activities of mobility, self-care, and self-management.

Subsection 24(1)(a) - Disability

The first mandatory criterion, under sub-s 24(1)(a) of the NDIS Act, requires a person seeking access to the NDIS to have a “disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable”.
In National Disability Insurance Agency v Davis (Davis),[16] Mortimer J (as her Honour then was) made the following judicial observation:
What the legislative scheme focuses on is not the name of a person’s disability, nor the diagnosis given to a person – but rather what are the impairments experienced by a person which may require supports so that the person can participate in all aspects of personal and community life. It is the impairment which the scheme contemplates may affect the “functional capacity” of a person.
[emphasis in original]
[16] [2022] FCA 1002, [69].
The NDIA provides the following policy guidance to decision-makers in its Access Guidelines, which broadly reflects sub-s 24(1)(a):[17]
[17] Access Guidelines, pp. 6-7.
Is your disability caused by an impairment?
When we consider your disability, we think about whether any reduction or loss in your ability to do things, across all life domains, is because of an impairment.
An impairment is a loss or significant change in at least one of:
•          your body’s functions
•          your body structure
•          how you think and learn.
To meet the disability requirements, we must have evidence your disability is caused by at least one of the impairments below
•intellectual – such as how you speak and listen, read and write, solve problems, and process and remember information
•cognitive – such as how you think, learn new things, use judgment to make decisions, and pay attention
•          neurological – such as how your body functions
•          sensory – such as how you see or hear
•          physical – such as the ability to move parts of your body.
You may also be eligible for the NDIS if you have a psychosocial disability. This means you have reduced capacity to do daily life activities and tasks due to your mental health.
It doesn’t matter what caused your impairment, for example if you’ve had it from birth, or acquired it from an injury, accident or health condition.
It also doesn’t matter if you have one impairment, or more than one impairment.
The NDIA accepts that CPPM has a “disability” within the meaning of sub-s 24(1)(a) arising from the Claimed Physical Impairments.
In Dr AR’s Report, following a medical examination of CPPM, Dr AR noted a “loss of lordosis” of CPPM’s lumbosacral spine and “demonstrated marked restriction of movements of flexion, extension, lateral rotation and lateral flexion”. Dr AR observed wasting of the quadriceps on CPPM’s left side, as compared with the right, and the muscle power on his left lower limb was weaker than on the right. Dr AR did not observe any sensory deficit and noted the reflexes were present and normal.[18]
[18] T-Documents, T7/56.
Dr AR noted a computed tomography (CT) scan performed on CPPM’s lumbar spine on 23 April 1992 which showed a “marked congenital narrowing of the spinal canal”. Dr AR also noted “a generalised bulge of the lumbosacral disc, with narrowing of the lateral recesses”.[19] Dr AR opined that CPPM has congenital narrowing of the spinal canal with disc prolapse at L4/5/S1 levels. Dr AR considered that the pre-existing congenital condition, followed by two instances of injury to his lower back, had contributed to his “present persistent chronic symptoms of lower back pain and sciatica”.
[19] Ibid.
A CT scan was performed on CPPM’s lumbar spine in January 2020. The report dated 23 January 2020 states as follows about CPPM’s back:[20]
[20] Exhibit A11.
Clinical: Chronic back pain and intermittent left leg pain
…
Report: Alignment normal. Disc height preserved. No fracture, pars defect or destruction bone lesion seen.
On the axial images:
There is a mild degree of congenital pedicular shortening at all levels and this is a normal variant.
At L4/5, a minor disc bulge and resulting borderline to mild central canal stenosis. The exit foramina are patent.
At L5/S1, a minor disc bulge and borderline canal stenosis. The exit foramina are patent.
No marked facet joint arthropathy. Appearance is normal at other levels. The left SI joint is partly ankylosed.
Conclusion: Minor disc bulges at L4/5 and L5/S1 with borderline to mild central canal stenosis but no distinct disc protrusion or exit foramina stenosis.
An ultrasound was performed on CPPM’s left shoulder on 4 March 2020. The report dated 5 March 2020 states as follows:[21]
Heterogeneous supraspinatus is noted but it is intact. AC joint stable. There is a thickened subacromial subdeltoid bursa with bursal bunching and impingement. No joint effusion is seen and other rotator cuff tendons are intact. Trial of Cortisone could be considered.
[21] Exhibit A12.
On 27 January 2022, a progress note recorded by CPPM’s former treating general practitioner, Dr RS, recorded that CPPM had developed a sudden severe pain in his right arm, starting at the ulnar side of the wrist and radiating up to the elbow and the shoulder. The pain was described as being sharp and that it also ached. Dr RS noted that CPPM had refused to go to the Mildura Base Hospital Emergency Department. He prescribed Endone to CPPM and referred him for a CT scan of his cervical spine to assess whether there was cervical radiculopathy.[22]
[22] JHTB, A3/6.
The CT scan of CPPM’s cervical spine was performed on 28 January 2022 and the report concluded as follows:[23]
Mild degenerative spondylosis of the cervical spine involving intervertebral spaces extending from C3 to C6 vertebrae. Significant impingement of exiting right C4 and C5 nerve roots within the neural foramina. Mild impingement of the right C6 nerve root.
[23] Ibid, A3/5.
CPPM returned to see Dr RS on 31 January 2022 and reported that his pain was fluctuating and that it was becoming painful to turn his neck to the right side. Dr RS prescribed CPPM a steroid medication, that is, prednisolone 25 mg daily, and Lyrica 25 mg “1 b d”.[24]
[24] Ibid, A3/7.
In Ms PH’s Report, she stated that all of the information she had gathered was “via self-reporting from [CPPM]”.[25] Ms PH stated that CPPM has “experienced chronic pain for a number of years” and “the pain greatly influences his day-to-day tasks”.[26] She states the pain is in his spine at L4 and L5 and that it radiates to the left hip and down to his left limb to his foot. She states CPPM experiences pins and needles within this area. She said he has bilateral shoulder pain due to torn ligaments and “wear and tear” in his left shoulder. Ms PH refers to CPPM having a fractured right wrist and thumb.
[25] T-Documents, T4/45.
[26] Ibid.
A/Prof DC confirmed in his report dated 22 August 2022 that CPPM has signs of left L5 radiculopathy in that he has pain, particularly in the left L5 dermatome, altered sensation in the left L5 dermatome and wasting of muscles in his left leg. A/Prof DC stated that CPPM has restriction in his range of motion of his lumbar spine to about 50 per cent of what would be predicted.
A/Prof DC stated that CPPM has a reduction in the range of motion of both shoulders, accompanied by pain down his right arm. He said that the movement of both shoulders at the extremes of range is quite painful, but tolerable in limited ranges. He opined that CPPM was suffering from osteoarthritis of both shoulders and has impairment of both shoulders, the right worse than the left.[27]
[27] JHTB, R5/221.
A/Prof DC referred to the CT scan performed on CPPM’s lumbar spine in January 2020 (see paragraph [56] above), which he said did not show entrapment of the left L5 nerve root, but he was satisfied from the history and limited physical examination, that CPPM is suffering from “left L5 radiculopathy”.[28] A/Prof DC stated that CPPM had “no other symptoms” of spinal canal stenosis.
[28] Ibid.
The Tribunal notes that X-ray scans were performed of CPPM’s right hand and/or wrist as follows:
(a)on 10 March 2018. The report dated 13 March 2018 stated that there was a fracture of the distal shaft/neck of the fifth metacarpal with no significant angulation;[29]
(b)on 19 April 2018. The report of the same date stated that there was a healing fracture of the neck of the fifth metacarpal and some comminution. The report stated that there was some “[s]light shortening but no displacement”;[30] and
(c)on 12 March 2019. According to Dr AP, the report confirmed the presence of an “old and appropriately healed fracture” at the distal end of the fifth metacarpal bone and “unrelated sign of mild degenerative changes in distal interphalangeal joints of all fingers of right hand”.[31]
[29] Exhibit A9.
[30] Exhibit A10.
[31] JHTB, R3/168.
Dr AP’s clinical notes for a consultation with CPPM on 18 March 2019 record that the fracture had healed and no further acute intervention was required.[32]
[32] JHTB, R3/169.
Considering the evidence set out in paragraphs [54] to [66], which was not contested by the NDIA, the Tribunal finds that CPPM has a disability arising from the Claimed Physical Impairments.
Accordingly, the Tribunal concludes that CPPM meets the criterion under sub-s 24(1)(a) of the NDIS Act.

Subsection 24(1)(b) – Permanency

The second mandatory criterion, under sub-s 24(1)(b) of the NDIS Act, requires a person seeking access to the NDIS to have one or more impairments that “are, or are likely to be, permanent”. The word “permanent” is not defined in the NDIS Act.
Rule 5.4 of the Access Rules provides that an impairment is considered permanent, or likely to be permanent, “only if there are no known, available and appropriate evidence-based clinical, medical, or other treatments that would be likely to remedy the impairment”.
Rule 5.5 provides that:
An impairment may be permanent notwithstanding that the severity of its impact on the functional capacity of the person may fluctuate or there are prospects that the severity of the impact of the impairment on the person’s functional capacity, including their psychosocial functioning, may improve.
Rule 5.6 provides that an impairment “may require medical treatment and review before a determination can be made about whether the impairment is permanent or likely to be permanent”. This rule also provides that:[33]
The impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated (even though the impairment may continue to be treated and reviewed after this has been demonstrated).
[33] The Tribunal notes that in Davisat [64] – [75] Mortimer J (as her Honour then was) raised a question about the validity of rr 5.4 and 5.6 being exclusionary in effect. No submission was made by either party in this application as to the validity of these two rules.
Rule 5.7 provides that if an impairment is of a degenerative nature, “the impairment is, or is likely to be, permanent if medical or other treatment would not, or would be unlikely to, improve the condition”.
Dr AR opines that surgical treatment is not appropriate for CPPM due to the congenital spinal canal stenosis and he believes CPPM’s condition is permanent and that his symptoms have stabilised and were fully treated.[34]
[34] T-Documents, T7/57.
The Tribunal acknowledges some of CPPM’s physical conditions have been long-standing, especially those impairing the use of his back and left lower limb. However, the Tribunal has its reservations about whether CPPM’s Claimed Physical Impairments are, or likely to be, permanent. The Tribunal notes in particular the evidence of the concerns held by more than one doctors/allied health professionals treating CPPM about his seemingly solitary reliance on an opioid analgesic, Panadeine Forte, which he has been taking for over 30 years, and his sleeping medication to manage his pain, instead of seeking out other types of clinical interventions for his various physical conditions.

For this very reason, on 6 July 2020, CPPM’s general practitioner, Dr AP, referred CPPM to the PRT at SCHS after CPPM had informed him that he had been taking Panadeine Forte for the last 30 years for his back pain. Dr AP, in the referral letter to SCHS, referred to CPPM having obtained “repeat” scripts for this medication from a medical clinic in Renmark, South Australia. CPPM had informed Dr AP as he was unable to go to that clinic anymore (noting that the Covid-19 pandemic lockdowns commenced in March 2020 resulting in lockdowns). Dr AP stated in the referral letter to the PRT, dated 6 July 2020, that he told CPPM that he was most likely addicted to this medication, and that he would require professional help to get rid of his opioid addiction.[35]
[35] JHTB, R2/124.
Upon being referred to the PRT, there was an issue with CPPM’s level of engagement with the PRT, resulting in the PRT Coordinator writing a letter dated 19 August 2020 to Dr AP stating that if CPPM failed to engage, it would result in the forthcoming appointment with the pain physician being cancelled. This letter referred to an intake appointment having been scheduled to take place between the Coordinator, who is a registered nurse, and CPPM on 3 September 2020.[36] CPPM did not attend this intake appointment, which resulted in the appointment with the pain specialist being cancelled.[37]
[36] Ibid, R1/55.
[37] Ibid, R1/59.
CPPM contacted the PRT later that day and explained that he was not feeling well and went to lay down. He said he had left his mobile phone in the car to charge. It was noted by the PRT in the progress notes that CPPM was upset about the appointment with the pain physician needing to be rescheduled to November 2020.[38] The PRT progress notes stated that CPPM was given the option to discharge from the service as “he is heavily focused on meds”.[39] CPPM did not take this option and later saw the pain physician, noting this was a necessary step before he was able to receive a script for Panadeine Forte medication.
[38] This appointment ended up taking place earlier on 14 October 2020 as a result of an appointment cancellation in relation to another patient.
[39] JHTB, R1/61.
The PRT progress notes show that CPPM was seen by a pain rehabilitation physiotherapist at SCHS on 9 October 2020 who noted CPPN’s “main pain problems” as being:
(a)his left shoulder, which had developed 12 months prior;
(b)his lower back and left leg pain, since falling off a horse in the 1980s; and
(c)his right shoulder pain, which had been “on and off” since an injury in 2013 when he was dragged by a horse, but which had become worse in the previous three years.
The PRT progress note dated 9 October 2020 recorded that CPPM had had no treatment for his left shoulder pain or his right shoulder pain. The note also stated that the only treatment CPPM had received for his low back and left leg pain, was a brief course of physiotherapy in the 1980s which reportedly had made it worse. It is stated that CPPM felt that the management of his low back pain and left leg pain was okay, but that he was not happy being taken off Panadeine Forte, asserting that this was the reason he needed to attend the pain service. The progress notes states that CPPM considers that the “main functional limitations” are caused by his left arm pain, “such as chores, showering and sleeping”.
The Tribunal notes a report issued by Dr RC, an Addiction Physician of the Royal Flying Doctor Service (RFDS), arising from a consultation with CPPM via telehealth on 14 October 2020.[40] Dr RC’s report records that CPPM had not changed his medication from Panadeine Forte to one tablet twice daily of Panadeine per day as Dr RC had recommended to CPPM in October 2019. Dr RC states he had made this recommendation to place a restriction on CPPM’s opioid intake because CPPM had visited a number of general practitioners (GPs) for Panadeine Forte scripts in the past. Dr RC states that CPPM had changed his GP and was now seeing Dr RS. Dr RC stated that CPPM was not keen on changing to Panadeine tablets. Dr RC stated in his report that, provided CPPM was not taking more than half a tablet three times a day, he considered this to be reasonable, remarking that CPPM “is still very active in life”.[41] CPPM’s evidence to the Tribunal is that he currently takes four half tablets per day.
[40] Ibid, R2/126-129.
[41] Ibid.
The PRT progress note dated 26 October 2020 records that CPPM had contacted the service indicating he was not happy about the letter from the RFDS suggesting medication changes, because he does not consider Panadeine is sufficient for his pain.[42]
[42] Ibid, R1/71.
The Tribunal considers, on the evidence, that CPPM has a fixed mindset about what he needs to do to manage his pain. He is firmly of the view that the only way to effectively manage his symptoms arising from his conditions is by taking opioid analgesic and sleeping tablets. The Tribunal considers that the evidence demonstrates that CPPM is not open to receiving other forms of treatment, or to accepting and complying with the medical and clinical advice of the various community-based health professionals who have attempted to treat him. This is consistent with an observation made in Ms MB’s Report as follows:[43]
Deconditioning/Self-Limiting behaviours:
·As noted above, [CPPM] has already explored medical strategies (including surgery) and physical treatment as well as pain management programs, as documented in the supplied reports from [SCHS]. However, he has not had access to functional strengthening programs and has not sustained pain management learnings into daily practice and continues to avoid personal care routines, and relies on passive management strategies, including medication and activity withdrawal/bedrest.
[43] Ibid, R6/242.
The Tribunal considers that if CPPM was willing to change his current mindset and engaged appropriately with suitable medical and clinical treatments, he has the potential to greatly improve his physical health and to reduce his current level of functional incapacity. The Tribunal acknowledges that CPPM’s circumstances are complicated by a number of factors including his age, level of education, personal background, limitations on his willingness and ability to use modern technology, and his socioeconomic status.
Rather than the Tribunal making definitive findings about whether any one or more of the Claimed Physical Impairments are, or likely to be, permanent (because the Tribunal has reservations about whether they are), the Tribunal considers it appropriate to approach its task by assuming, momentarily, that the Claimed Physical Impairments are, or likely to be permanent, and to first decide whether CPPM satisfies sub-s 24(1)(c) of the NDIS Act by considering the evidence about the level of his reduced functional capacity.
If CPPM does not meet the required threshold under sub-s 24(1)(c), it will not be necessary for the Tribunal to make definitive findings about the permanency of CPPM’s Claimed Physical Impairments, because the criteria under sub-ss 24(1)(a) to (e) of the NDIS Act are cumulative, and each must be satisfied in order for the Tribunal to conclude that CPPM meets the “disability requirements”.

Subsection 24(1)(c) – Substantially reduced functional capacity

Rule 5.8 of the Access Rules sets out certain circumstances where it will be deemed that a person has a substantially reduced functional capacity to undertake one of the six prescribed activities. Rule 5.8 provides as follows:
When does an impairment result in substantially reduced functional capacity to undertake relevant activities?
5.8An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities—communication, social interaction, learning, mobility, self-care, self-management (see paragraph 5.1(c))—if its result is that:
(a)the person is unable to participate effectively or completely in the activity, or to perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications; or
(b)the person usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in the activity or to perform tasks or actions required to undertake or participate in the activity; or
(c)the person is unable to participate in the activity or to perform tasks or actions required to undertake or participate in the activity, even with assistive technology, equipment, home modifications or assistance from another person.
Paragraph 5.8 is made for the purposes of paragraph 27(b) of the Act.
The Access Guidelines provide policy guidance in relation to deciding whether a person meets the criterion under sub-s 24(1)(c) of the NDIS Act. An earlier version of this policy guidance (as issued on 1 July 2022) was considered by the Full Court of the Federal Court of Australia (Full Court) in National Disability Insurance Agency v Foster (Foster),[44] and at [62], Derrington J, with whom Katzmann and Perry JJ agreed, made the following judicial observation:
As such, the Guidelines are merely administrative “tools”. They do not provide a legislative definition of the relevant activities. They do not control the meaning of the phrase “substantially reduced functional capacity”. Nor do they alter the threshold criteria for when a person meets the disability requirements as specified in s 24(1) of the NDIS Act. They are not the equivalent of a statutory provision and are not to be construed in like manner: Australian Prudential Regulation Authority v TMEffect Pty Ltd [2018] FCA 508; 76 AAR 540 at [59] per Perry J. Rather, they provide non-exclusive content to the range of “tasks and actions” (as referred to in r 5.8) that comprise the “activities” the NDIA is required to consider, consistent with the legislative history, context, and purpose.
[44] [2023] FCAFC 11; 295 FCR 521.
The Tribunal agrees with (and is bound to adopt) the approach as set out by the Full Court in the above paragraph, in respect of the NDIA’s policy guidance in relation to how a decision-maker, such as the Tribunal upon review, should interpret and apply r 5.8 of the Access Rules.
The NDIA acknowledges CPPM’s difficulties in undertaking mobility, self-care, and self-management, especially when he is experiencing pain. However, the NDIA contends that CPPM’s Claimed Physical Impairments do not reach the required threshold of resulting in a substantially reduced functional capacity, in any of those three activities which CPPM contends are impacted by his Claimed Physical Impairments. The Tribunal will deal with each of those three activities first and then address the remaining three activities.

Mobility

In the Access Guidelines, the NDIA describes the reference to “mobility” as referred to in sub-s 24(1)(c)(iv) of the NDIS Act, as follows:[45]
Mobility, or moving around – how easily you move around your home and community, and how you get in and out of bed or a chair. We consider how you get out and about and use your arms or legs.
[45] Access Guidelines, p. 8.
At the hearing CPPM confirmed that he has spinal stenosis causing him pain. He said there is a lump on the inside of one of the discs in his spine. He said this takes away the use of his left leg and that he will experience several falls. He confirmed that he has pain in both shoulders.
CPPM is able to walk and to use his upper limbs, albeit with limitations. CPPM walks with a limp as observed by the OTs who have assessed him. He is able to walk over uneven ground between his caravan and the shed, but he will do so slowly and cautiously. Observations have been made by the doctors who have examined CPPM that he has muscle atrophy (that is, muscle wastage) in his left lower limb, being consistent with CPPM favouring the use of one limb over the other.
CPPM confirmed that he has pain in his left lower limb which increases unsteadiness in his left leg. He said that sometimes this causes him to fall over. CPPM states he had experienced falls in the past, including in the week prior to the commencement of the hearing when he said he hurt his left elbow, which he said he used to break the fall. Thankfully, an X-ray scan of the arm taken after this fall revealed that his elbow was not fractured.
CPPM also said he has difficulty leaning forward and that he feels like he will lose balance.
In Ms PH’s Report, Ms PH states that CPPM has difficulty mobilising in the home and the community. She states that CPPM has “frequent falls that can result in superficial injuries and further exacerbates his chronic pain”.[46] She records that CPPM does not use a walking aid. She states that he cannot sit, stand, or walk for longer than 20 to 30 minutes. Ms PH states that CPPM can transfer in and out of bed, although with difficulty because the of the bed design, and from his couch/chair, although with difficulty.[47]
[46] T-Document T4/48.
[47] T-Document T4/46-48.
Despite CPPM’s mobility limitations and the reported falls risk, CPPM told the Tribunal at the hearing that he does not use a walking stick or any other walking aid. CPPM was asked at the hearing why he had not taken up A/Prof DC’s recommendation that he use a walking stick. His response was: “I don’t want to look that old”. This was seemingly inconsistent with CPPM’s evidence at the hearing that he would experience a fall at least three times in a fortnight, or at least his choice not to use a walking stick to aid his balance did not make sense. The Tribunal found CPPM to be a forthright witness but it considers that his decision not to use a walking stick when mobilising on a day-to-day basis casts considerable doubt on CPPM’s evidence that his risk of falling is significant.
CPPM said when he goes to the post office, he will always use the ramp.
When asked about his other impairments, CPPM said he could not dress or shower properly. CPPM said he could only lift his arms to shoulder height. He was asked at the hearing how he manages to umpire cricket and in particular, how he is able to signal when a player is out, which will usually occur by the umpire holding their arm above their head. CPPM said he will do so by holding his finger up in front of him.
CPPM confirmed that he has difficulty grasping objects and is always dropping things. He said he has broken a lot of coffee cups. He said he would experience pain in his right hand and that he had problem gripping and using his right arm and hand. He said he would try to relieve the pain by placing his hands in cold water. He referred to the right-hand injury he sustained after being hit with a cricket ball. He said that the little finger on his right hand stuck out sideways. He said he needed to be careful that he does not catch his little finger on things, and that he will sometimes use a splint to hold his finger in place to protect it. He said he does not wear the splint all the time because it “can become itchy”. He said he cannot wave his right hand and that it can be painful. CPPM said he could not open the lids on jars and will ask the staff at the supermarket to loosen them for him. He said he will also ask the staff at the supermarket to put heavy grocery items in his car for him.
At the hearing, CPPM was asked whether he has trouble entering his caravan via the steps. CPPM said that sometimes he has a bit of trouble, but sometimes is okay. He said that he will sometimes lean on the collar of his 42 kg dog as a support.
CPPM was taken to Ms MB’s Report and confirmed that he experienced chronic back pain and bilateral shoulder pain as recorded in that report. CPPM said that when he moved his shoulders around, it sounded like a “rubber band snapping”. He described both arms as being sore, but that his left arm was sorer than his right. When asked whether his right arm was sore as a result of the injury to his right arm, CPPM said “yes, I think so”. He said that he had a tendency to drop things, mainly with his right arm, “where the nerves are connected out of my neck”.
CPPM said he had difficulty with transfers and that “sometimes it takes longer to get up, than to get down”. He confirmed that some days are worse than others and that when it is “cloudy and cold” that it “gives me hell”. He said that on a good day, his pain might be five out of 10 (where 10 is the worst possible pain), but that it is not at this level for long. He said that on some days, his pain will be 10 out of 10, but it felt to him like 15 out of 10. He said that on some days, he needed to stand in the sun to stop shaking. CPP said that he may have 10 out of 10 pain day on about four or five days per week. He said, in poor weather, he had pain all the time and he might get a couple of good days if he could sit in a chair in the sun, out of the wind.
Referring to his caravan, CPPM said “I can’t move in here. There is so much junk in here”. Ms MB’s Report refers to CPPM having difficulty getting in and out of bed due to the placement of bed within the caravan. Ms Bruyn stated as follows in her report:
[CPPM] reported his bed in caravan is up against the wall, so needs to roll out to base of bed to “scoot” out of bed. He reported this is effortful and requires him to prepare mentally for this activity due to shoulder and neck pain. He has difficulty rising from low seats, and uses chair arms or table or other furniture to assist.
The Tribunal notes from the photographic images of the inside of the caravan, provided by CPPM while the hearing was part-heard, that the spaces between the bed and caravan walls are occupied by numerous bulky personal times stacked up quite high. The caravan is extremely cluttered. CPPM denied that he had a hoarding problem. He stated that he was using the items that may be viewed in those photographs on a day-to-day basis, explaining that some of those items included his clothes. It is also evident from the photographs that even if those numerous bulky personal items were moved, there is no access to the spaces alongside the side edges of the bed, because the end of the lounge seat on each side of the caravan connects to the bed. CPPM said it is not possible to modify the ends of the lounge seats because they form part of an all-in-one storage unit and the bench seats were connected to the overhead cupboards.
The Tribunal considers that part of the problem experienced by CPPM getting into and out of bed arises due to the design of the compact caravan, and the placement of CPPM’s bed and his numerous personal belongings inside the caravan. Those difficulties do not arise by reason of CPPM’s disability. If CPPM were living in accommodation where he has a bed that is accessible from the side of the bed in the usual way, the Tribunal does not consider that CPPM would have trouble getting into and out of bed, or that if he experienced any difficulty, it would be minimal.
Ms MB said she observed CPPM getting up and down from the park bench with some difficulty, during her assessment of him on 17 November 2022. CPPM said that, in his caravan, he used the table to get up and down from the bench seat. The Tribunal considers the requirement of a person in their 60’s to use nearby furniture when standing up or sitting down from sitting in a chair does not constitute a notable difficulty of someone of that age.
CPPM told the Tribunal that he takes his dogs out on a walk daily. He says his dogs are not on a lead when he walks them. He said they only walk for a distance of about 30 m from the caravan and then they return.
CPPM is able to walk without a walking stick for a sufficient distance to allow him to do his groceries at the supermarket. He says he can do so as long as he is leaning on a shopping trolley. CPPM says he could not make it up a flight of stairs and in “most places, go in the lift”. CPPM is able to walk and stand sufficiently to allow him to umpire a cricket match, even if those matches last for less than one hour. CPPM is able to walk sufficiently to be able to walk down a dirt driveway between his caravan to the external shed and back again, after he showers or does his laundry. He said the distance between the caravan and the shed was about 50 m and that on a good day it will take him about two minutes to make this trip, or on a bad day, it will take him five minutes. CPPM is able to walk a sufficient distance to allow him to round up the poultry he looks after and to use his upper and lower limbs to feed the poultry and the other dogs and cats on the property. CPPM is able to play his drums occasionally, albeit softly or very carefully. When asked at the hearing how frequently he would play the drums, CPPM said he plays them less than about once a month. Ms MB observed CPPM bending over to check underneath his car, at the time when she undertook her assessment of him, while in transit between his caravan and the nearby park where the assessment ultimately took place.

The Tribunal concludes that none of the circumstances set out in r 5.8 apply to CPPM. In reaching this conclusion, the Tribunal has considered the judicial observations of the Full Court in Foster, regarding the construction of r 5.8(a), including (among other things) whether the phrase “effectively or completely” means that if there is any task or action that forms part of a relevant activity, which cannot be performed with an aid, a person is deemed to be unable to participate effectively or completely. The Full Court in Foster held that it was an error for the Tribunal in that case to only consider the ability of the applicant to undertake a single task that fell within the prescribed activity and to make its assessment about whether r 5.8(a) applied based on an inability of the applicant in that case to undertake that single task.[48] In Foster, the Full Court held that a person will not necessarily be deemed to have a substantially reduced functional capacity simply because one task is unable to be completed without AT, and that the task remained to assess the degree to which the person can participate in the “activity”.[49]
[48] Foster, at [65].
[49] Ibid [88].
Adopting the approach in Foster, the Tribunal finds that r 5.8(a) does not apply to CPPM because it is not satisfied that he is unable to participate effectively or completely in the activity of mobility (or to undertake tasks or actions required to participate in this activity) without AT, equipment (other than commonly used items) or home modifications. The Tribunal acknowledges that CPPM does experience difficulties with his mobility; however, at present, taking all tasks or actions that make up the activity of mobility as described in the above paragraphs, CPPM is able to participate effectively or completely in this activity. It has been suggested to him that he use a walking stick for stability when mobilising, but he has chosen not to do so. Even if he were to do so, the Tribunal considers a walking stick to be a commonly used item within the meaning of r 5.8(a).
Regarding home modifications, the Tribunal acknowledges that CPPM would be assisted if grab rails were installed at the entrance to his caravan. The reason those rails are required is because there is no stair railing where the steps are. The installation of grab rails near those steps are, in the Tribunal’s view, tantamount to stair railing. The Tribunal considers that stair railings are a commonly used item and, likewise, considers that any grab railing at the entrance of the caravan would be the equivalent of a commonly used item in the context of CPPM’s current housing.
As for CPPM’s need to use the table or back of the bench seat for support as he stands to or from a sitting to a standing position, the Tribunal considers those supports to be commonly used items. CPPM does not require a person to support him as he walks and undertakes transfers in and out of a bed or a chair and when he is using his upper limbs. He does so independently except for when he is lifting heavy items or needs to reach above his head. In terms of doing his laundry, CPPM said he is able to load his clothes into and out of his washing machine, explaining that he has a top loader washing machine and that he only puts one item of clothing in the machine at a time. He is able to hang his laundry on a modified clothesline being the crosswires of an old grape vine on the property.
As for Ms MB’s recommendation that CPPM use a bed rail/bed stick when getting in and out of bed,[50] the Tribunal considers that the reason for this is not on account of CPPM’s Claimed Physical Impairments, but rather the layout of his caravan rendering the side of his bed inaccessible, which is compounded by the placement of numerous bulky items along the side of his bed. Those restrictions can be overcome if CPPM is to relocate the items near his bed or to move into alternative public housing accommodation which has been offered to him by Housing Vic, and which the Tribunal notes, to date, CPPM has declined.
[50] JHTB, p 240.
As mentioned above, the Full Court in Foster has held that the Tribunal must not focus its consideration on a single task. The Tribunal has taken into account CPPM’s ability to carry out many of the tasks that make up the activity of mobility, and that by and large he can undertake them independently, even if he is required to modify the way he does them (for instance, CPPM stated that he hangs his laundry on low railing and when he plays the drums, he will do so softly) or that he is required to use pacing strategies (for instance, he was observed by Ms MB and Ms PH to walk slowly to the shed near his caravan with the facilities in it, and when he bent down to look underneath his car, he did so slowly).
The Tribunal finds that the deeming rule in r 5.8(a) does not apply in CPPM’s case in relation to the activity of mobility.
In relation to r 5.8(b), the evidence did not reveal that CPPM is usually assisted by other people to participate in (or perform tasks or actions required to undertake) the activity of mobility. He lives alone and will undertake all activities of daily living at home independently. Sometimes, CPPM will rely upon assistance from others, such as asking the supermarket staff to carry heavy items and place them in his car, or he said he had organised a person to whipper snip the weeds at his place. He also spoke of calling in the SES the night before the hearing on 5 July 2023 to place a tarp over his caravan, to stop his caravan from leaking. However, by and large, the Tribunal finds that CPPM participates in (or performs the tasks and actions required to undertake) the activity of mobility by himself. He does so independently and despite his need to modify some of the tasks or actions, or to pace himself at times, such as when undertaking the tasks referred to at the end of the above paragraph.
The Tribunal finds that the deeming rule in r 5.8(b) does not apply in CPPM’s case in relation to the activity of mobility.
The Tribunal also finds that r 5.8(c) is not applicable as CPPM is able to participate in (or to perform tasks or actions required to undertake) the activity of mobility. He is able to move about in his home and in the community. He is able to attend cricket matches during the cricket season and to umpire women’s matches. He is able to play the drums, albeit carefully and softly. He is able to walk his dogs, albeit short distances and he is not required to manage the dogs on a lead. He is able to transfer in and out of his caravan, albeit sometimes needing to lean on one of his dogs. He is able to transfer in and out of his car. He has a driver’s licence and drives short distances, which enables him to move about in the community, even if it is accepted that the trips he makes are of a short distance before he is required to stop and rest.
The Tribunal concludes that CPPM is not deemed to have met the criterion under sub-s 24(1)(c) of the NDIS Act, by reason of the deeming provisions in r 5.8 of the Access Rules in respect of the activity of mobility.
It remains for the Tribunal to decide, putting aside this deeming provision, whether CPPM’s Claimed Physical Impairments have resulted in a substantially reduced functional capacity in the activity of mobility. The Tribunal accepts that CPPM has some limitations to the extent that he can mobilise. However, taking into account the activities CPPM can and cannot do, and those he has difficulty with and the extent of such difficulty, when it comes to walking and mobilising within the community and at home and to undertake a range of physical transfers, on balance, the Tribunal agrees with the NDIA’s contention that CPPM does not reach the requisite threshold, under sub-s 24(1)(c) of the NDIS Act, of having a substantially reduced functional capacity in the activity of mobility as a result of his Claimed Physical Impairments. These impairments are certainly significant, but they do not result in substantially reduced functional capacity, which is a higher threshold required to be met to entitle a person to have access to the NDIS.

Self-care

In the Access Guidelines, the NDIA describes the reference to “self-care” as referred to in sub-s 24(1)(c) of the NDIS Act, as follows:[51]
Self-care – personal care, hygiene, grooming, eating and drinking, and health. We consider how you get dressed, shower or bathe, eat or go to the toilet.
[51] Access Guidelines, p. 8.
In Ms PH’s Report, she stated that CPPM can have difficulties managing his self-care activities due to exacerbation of pain. She states CPPM is restricted in movements due to the pain and, in turn, this affects his ability to complete additional tasks. Ms PH states in her report that her assessment was based on self-reporting by CPPM.
At the hearing, CPPM said he is able to brush his teeth, adding that he only has two teeth remaining. He says he does not wear a beard and will shave every three or four days. He says that sometimes he “will make a mess of it”. He was asked whether he had arranged for someone to help him shave, he said there was nobody to help him. He was asked whether he would want someone to help him shave, and his answer was “no”.
At the hearing, CPPM said he was able to eat but he said “only the soft stuff” because of his teeth. He said he drunk coffee and water and that was it. He said he had difficulty grasping and holding a knife and that sometimes he would experience cramps. He said it took him longer than usual to cut something with the knife, so he “usually gives up”.
When asked about his participation in cooking his food, CPPM said that there is not enough room in the caravan and that cooking would “make dishes”. He said he does not like using saucepans. He says he will cook things such as fried sausages, chips, and eggs. He said he eats tinned food, such as spaghetti or tinned stew.
At the hearing, CPPM said he is able to go to the toilet independently but sometimes he will struggle if he “has to go in a hurry”. The toilet is in the external shed which is about 50 m from the caravan.
CPPM said he has a shower once every two to three days. He said it was too hard for him to get his clothes on and off and for him to get his socks on. He said he will get dressed in the shed if it is cold but, in the summertime, he will return to the caravan to dress with a towel wrapped around him if required. When CPPM was asked whether he could wash his hair, he said he could, but that he had not washed his hair for a few years. CPPM told the Tribunal that he had experienced a couple of falls in the shower. When asked whether he had used a shower chair in the shower as had been recommended to him, he said that he did not. CPPM said he had trouble using a towel behind his back because his shoulders “don’t work”. He said he gets dry by putting a shirt on. He said in the summer he will dry off naturally when he walks back to the caravan because it so hot where he lives.
Ms MB states that CPPM is able to manage all self-care activities independently. She says that CPPM is “slower” and will avoid some activities such as feeding himself, reduce shower frequency and neglect grooming due to his “chronic pain and learned behaviour”. Ms MB description of CPPM’s capacity to undertake self-care tasks or activities aligned with CPPM’s evidence at the hearing. Ms MB opined that CPPM does not require physical assistance or prompting from another person to manage his own personal care including toileting, showering, or dressing. However, she considers that he would benefit from low-cost AT, such as “modified cutlery, shower stool, dressing aids and reaching [aids]”, to enable him to do these tasks independently and more easily, and to prevent falls and reduce aggravation of pain. She said that he also requires education on activity modification during personal care tasks to support independence in self-care.[52]
[52] JHTB, R6/242-243.
As mentioned above, the Full Court in Foster has held that the Tribunal must not focus its consideration on a single task. The Tribunal has taken into account CPPM’s ability to carry out the various tasks and actions that make up the general activity of self-care. The Tribunal finds that, by and large, CPPM can undertake the majority of tasks and actions making up the activity of self-care independently, even if he is required to limit the frequency by which he will undertake those tasks, such as showering and shaving and by modifying the way he does them such as what he chooses to eat and how he might use cutlery or a knife. The Tribunal acknowledges that CPPM will use the services of a podiatrist to carry out self-grooming tasks on his feet.
The Tribunal is not satisfied on the evidence that CPPM is unable to participate effectively or completely in the activity of self-care, or to perform tasks or actions required to undertake or participate effectively or completely in this activity, without AT, equipment (other than commonly used items) or home modifications. The evidence is that CPPM does not presently use AT, equipment, or home modifications to undertake tasks and actions making up the activity of self-care. CPPM has said he is able to shower independently but says he has experienced falls in the shower. Ms MB has recommended that CPPM would benefit from using a shower stool and Ms PH has recommended that he should use showering aids when he showers. However, the Tribunal considers a shower stools and showering aids such as long-handled brushes to be a commonly used items and may be purchased at an everyday store. CPPM gave evidence that he was able to brush his teeth and did not use any special equipment to do so. He also gave evidence that he is able to cook simple meals for himself. Both OTs have recommended that CPPM use ergonomic cutlery when he eats his food. The Tribunal finds that ergonomic or adaptive cutlery is not a commonly used item. The Tribunal finds that CPPM’s ability to eat his food would be made easier by the use of such cutlery.
CPPM is able to dress adequately even if it takes him some time to do so. The Tribunal finds that he does not require the use of any AT or home modifications to complete this task. CPPM gave evidence that he can go to the toilet independently. CPPM gave evidence about the difficulty he has holding a coffee cup because he has difficulty grasping things. However, CPPM is able to modify this task by using his left hand to raise a cup or glass when drinking.
In conclusion, the Tribunal finds that r 5.8(a) does not apply to CPPM in relation to the activity of self-care because when the evidence is considered overall, the Tribunal finds that CPPM does not usually require AT, equipment (other than commonly used items) or home modifications to enable him to participate effectively or completely in most of the actions and tasks forming part of the activity of self-care.
Further, the Tribunal finds that CPPM does not usually require assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in the activity or to perform tasks or actions required to undertake or participate in the activity of self-care. He has received assistance from a podiatrist to attend to self-grooming tasks related to his feet. However, he has been able to undertake all other tasks and actions forming part of self-care without other persons helping him. The Tribunal notes CPPM’s evidence that he would not want someone helping him to shave if this was an option open to him. The Tribunal finds that r 5.8(b) does not apply to CPPM in relation to the activity of self-care.
No assessment is able to be made as to whether r 5.8(c) applies in this case due to the fact that CPPM does not presently use AT, equipment, home modifications or assistance from another person to help him undertake tasks and actions forming part of the activity of self-care. He has been able to undertake the majority of those tasks and actions independently without the use of such assistance, equipment, and modifications.
In conclusion, the Tribunal finds that the deeming provisions under r 5.8 do not apply to CPPM in relation to the activity of self-care.
Putting aside this deeming provision, it remains for the Tribunal to decide whether CPPM’s Claimed Physical Impairments have resulted in a substantially reduced functional capacity in the activity of self-care. The Tribunal accepts that CPPM does not feel he can presently shower safely, although he is doing so. The Tribunal notes that CPPM is using a podiatrist to care for his feet. However, he is able to dress and undress himself, eat, cook simple meals, go to the toilet, shave, and attend to his personal care and hygiene. He can shower, albeit with the abovementioned safety concerns which would be ameliorated if he were to use a commonly used item such as a shower chair.
The Tribunal has taken into account the activities that CPPM can and cannot do, and those he has difficulty with and the extent of such difficulty, as outlined above. When it comes to CPPM using his body to shower, dress, and undress, eat, cook simple meals, go to the toilet, shave, and attend to his personal care and hygiene, on balance, the Tribunal agrees with the NDIA’s contention that he does not reach the requisite threshold under sub-s 24(1)(c) of the NDIS Act of having a substantially reduced functional capacity in the activity of self-care as a result of his Claimed Physical Impairments. The Tribunal acknowledges that CPPM does have some impairments in relation to the activity of self-care, but the Tribunal finds that the degree of this functional capacity is not substantial.

Self-management

In the Access Guidelines, the NDIA describes the reference to “self-management” (as referred to in sub-s 24(1)(c) of the NDIS Act), as follows:
Self-management (if older than 6) – how you organise your life. We consider how you plan, make decisions, and look after yourself. This might include day-to-day tasks at home, how you solve problems, or manage your money. We consider your mental or cognitive ability to manage your life, not your physical ability to do these tasks.
The Tribunal notes the qualification the NDIA has included in its description of this activity in the Access Guidelines, being that it considered that it is referring to a person’s mental or cognitive ability to manage their life, and not their physical ability to do those tasks. The Tribunal considers that such a qualification is not supported either by the wording in sub-s 24(1)(c) of the NDIS Act, nor the wording in the Access Rules. The Tribunal will not apply this guidance as it does not consider the qualification made by the NDIA to be consistent with operative provisions under the legislation. The Tribunal considers that self-management may encompass a whole range of tasks or actions which may be impeded by any of the different types of impairments referred to in sub-s 24(1)(a) of the NDIS Act, and not merely some of them.
With that in mind, the Tribunal notes that, consistent with Ms MB’s Report, CPPM’s own evidence was that he can independently manage his finances and pay his bills. He is also able to arrange his appointments independently, such as attending his treating general practitioner, which he says he does about once a month and to obtain his scripts and to pick up his medication. CPPM said he is able to pay his utility bills independently. He says he is able to correspond with Centrelink about his Disability Support Pension (DSP) independently. He has been able to make a successful application for public housing independently.[53] At times, CPPM will require assistance from another person with some of these tasks because, by his own evidence, he does not like using technology. He says he has a smart phone but says he will only use it to make telephone calls. He says he has a computer in his caravan but that he will rarely use it. He is generally not interested in technology, apart from the basics.
[53] Successful, in that he was assessed as eligible and has been made one offer of public housing to date.

The task of identifying which early intervention supports CPPM sought to rely upon when contending that he met the early intervention requirements under s 25 of the NDIS Act was not straightforward in this matter, particularly given that CPPM was self-represented at the hearing. He stated that he wanted help with “cleaning” and “to maintain his yard”.
Ms PH’s Report was issued on 10 March 2021. The Tribunal notes that five days later, on 15 March 2021, CPPM had “agreed” to being discharged from the PRT at the SCHS, purportedly due to there being an issue as to his housing security, which he had stated was his priority. The Coordinator wrote to CPPM’s former general practitioner, Dr RS on 15 March 2021 to report that CPPM has been under the care of their team for some time, that he had been assessed by the RFDS pain physician and that he was “managing well on a small amount of P’Forte”. She refers to the functional assessment having been completed to support CPPM’s NDIS access request. The Coordinator states that CPPN would benefit from ongoing physiotherapy and occupational therapy, and that he was welcome to re-refer himself to their service.[55]
[55] Ibid, A4/10.
Ms PH recommended that CPPM be provided with:
(a)various items of AT to the total value of about $1,000;
(b)occupational therapy education to provide him with sleep hygiene strategies and activity modification strategies (specifically, 15 hours of occupational therapy to assist with implementing the recommended modifications and AT);
(c)domestic assistance to clean his floors, make his bed, launder his sheets, and clean the bathroom and toilet;
(d)gardening and home maintenance assistance, comprising a gardener once a fortnight and a support person to sort through and remove items from his property that he no longer requires; and
(e)support coordination to ensure he is receiving the appropriate care.
Ms MB also recommended physiotherapy and occupational therapy which she stated in her report “might” assist CPPM to build his functional capacity. When questioned at the hearing about her reservation about those supports, Ms MB said she had changed her mind regarding this recommendation, stating that she was no longer recommending occupational therapy and physiotherapy for CPPM, because those supports were unlikely to be beneficial based on CPPM’s mindset.
Ms MB has recommended low-cost AT in the form of adapted cutlery, adapted meal preparation knife, long-handled reaching aids, dressing aids, shower chair, mattress lifting tools, long-handled cleaning tools such as bionic relief grip gardening gloves, cyclone foldable seat keeler and Fiskars garden weeder.
Ms MB recommended minor home modifications such as placement of grab rails at the entrance of CPPM’s caravan. At the hearing, CPPM indicated that such rails would be of little help to him, as he is unable to grab them properly due to his hands.
The Tribunal considers it appropriate to undertake a consideration of sub-s 25(3) of the NDIS Act, based on the following supports:
(a)domestic assistance, as referred to in paragraph [179(c)];
(b)gardening and home maintenance assistance, as referred to in paragraph [179(d)];
(c)low-cost AT, as referred to in paragraph [179(a)]; and
(d)support coordination to ensure he is receiving the appropriate care, as referred to in paragraph [179(e)].
The Tribunal will refer to these supports collectively as the Early Intervention Supports.
The NDIA contends that sub-s 25(3) of the NDIS Act applies to CPPM in this case because the Early Intervention Supports are more appropriately funded under the following Other Services Systems:
(a)Commonwealth Home Support Programme (CHSP) under My Aged Care which is funded by the Australian Government. CHSP is described as providing “entry-level aged care services for older people who need assistance to keep living independently at home and in the community”;[56]
(b)Victorian Aids and Equipment Program (VA&EP),[57] which incorporates the Victorian State-Wide Equipment Program (SWEP),[58] funded by State and Commonwealth Governments and administered by Ballarat Health Services. SWEP is described as assisting “eligible people across Victoria who have a permanent disability and/or are frail aged with support to access equipment/Assistive Technology (AT) and/or vehicle and home modifications”. There is no age limit applicable, in respect of a person being eligible for this program;
(c)Home and Community Care Program for Younger People (HACC-PYP)[59] offered by the Victorian Department of Health and Human Services. This HACC-PYP states that it is “for people aged under 65…who need assistance with daily activities, including personal care, dressing, preparing meals, house cleaning, property maintenance, community access and using public transport”.[60] Delivery of the HACC-PYP is now undertaken by SCHS.[61] It was previously undertaken through the Mildura Rural City Council (Council). According to the Council’s website, it transitioned out of delivering aged and disability home support services on 30 June 2023;[62] and/or
(d)Medicare Benefits Scheme (MBS), funded by the Australian Government. The MBS will fund up to five sessions per year (of at least 20 minutes per session on a one-to-one basis) of eligible allied health practitioners, which include (among others) occupational therapy, physiotherapy, diabetes educators, dietitians, chiropractors, podiatry, mental health workers, osteopaths, chiropractors, or psychologists.[63] For a person to be eligible they must be under a GP management plan and the GP must have completed a team care arrangement. The GP must be satisfied that the person’s “chronic condition” would benefit from allied health services.
[56] Supplementary JHTB, R8/1-20.
[57] Ibid, R9/37-67.
[58] Ibid, R9/25-36.
[59] Ibid, R10/68-70, and program manual 2013, R10/71-84.
[60] Ibid, R10/68.
[61] Ibid, R10/85-88.
[62] Ibid, R12/99.
[63] Ibid, R14/110-116.
Mallee Family Care provides support to persons who are homeless, or at risk of homelessness. CPPM was asked about Mallee Family Care and he said that he was not in touch with them.
Dealing with the MBS services first, Ms MB’s view was that the provision of occupational therapy or physiotherapy to CPPM would not be of benefit on account of his mindset to such services. He had a bad experience when receiving physiotherapy decades ago and is firmly of the view that such therapy would be potentially detrimental to him, so he is not open to it. As stated above, this is not an early intervention the Tribunal has taken into account when making its assessment and for this reason, the MBS is not a service that the Tribunal must consider.
At the hearing, CPPM said that nobody had ever mentioned to him before any of the programs referred to in subparagraphs 184(a), (b) and (c). He said he has accessed (and paid a fee for) some services through the Council for garden maintenance in the past (to cut back the weeds). He said that this person has now left and has not been replaced. CPPM said he no longer receives such gardening services.
The Tribunal considers that, in assessing whether the Early Intervention Supports are most appropriately funded under the NDIS, or are more appropriately funded through one or more of the Other Services Systems listed in paragraph [184], the Tribunal should take in account the following factors or program attributes:
(a)whether those Other Services Systems will fund or provide the type of early intervention supports that have been recommended for CPPM;
(b)whether CPPM is eligible to participate in the Other Services Systems, given his age and circumstances;
(c)whether CPPM is required to pay a subsidised fee to access the supports through those Other Services Systems and, if so, whether this is a fee CPPM is able to afford; and
(d)any other relevant factors (such as waiting lists or other such obstacles in respect of CPPM accessing supports or funding under those Other Services Systems).

CHSP

A booklet about the CHSP (current as of April 2023) was lodged with the Tribunal.[64] CHSP is for people aged 65 years and over and also includes support services for:
(a)prematurely aged people on a low income who are 50 years or over and are living with:
(i)hoarding behaviour; or
(ii)in a squalid environment; or
(b)people who are homeless or at risk of homelessness.[65]
[64] Ibid, R8.
[65] Ibid, R8/6.
CPPM falls into in the age bracket of 50 to 65. The Tribunal considers that CPPM meets the additional requirements for this age bracket, namely, that based on the photographic images of the inside of CPPM’s caravan and the reports by CPPM of the rubbish around his caravan (as corroborated by Ms MB’s observations), CPPM is living in “a squalid environment”. No offence is intended to CPPM by describing his living conditions in this way. It might be suggested that CPPM is at risk of homelessness, however, the Tribunal considers his housing situation to be reasonably stable at the moment. This could change in the future, but the Tribunal considers that it should make its assessment based on a consideration of CPPM’s current situation.
The different types of supports offered under the CHSP (as relevant to the Early Intervention Supports) include the following:[66]
(a)transport to appointments and activities;
(b)domestic help (e.g., house cleaning, washing clothes)
(c)home maintenance (e.g., changing light bulbs, gardening)
(d)aids and equipment (e.g., bath seat, raised toilet seat, mobility aids); and
(e)meals, help with food preparation and cooking skills, nutrition advice.
[66] Ibid, R8/7.
For persons aged under 65, it is necessary for the Aged Care Assessment Team (ACAT) assessors to “test with the [NDIA] whether you can be assisted by the NDIS” before approving a younger person for aged care.[67] Following this, a home support assessment will be conducted by a Regional Assessment Service (RAS), usually in the person’s home or by teleconference or videoconference. This assessment is provided free of charge. The RAS assessor will work with the person to develop a personalised home support plan tailored to the person’s needs and they might suggest options that are not part of CHSP (for instance, local community services, groups, and activities). The RAS assessor can arrange to have a referral for service sent to a service provider which will prompt them to call the person requiring support to make arrangements. Alternatively, the RAS assessor will provide a referral code to the person requiring support, who may then contact the service provider.
[67] Ibid, R8/9.
The CHSP booklet states that “if there are no services available, you may be placed on a waitlist. Once services become available, people on the waitlist with the highest level of need will be offered services first”.[68]
[68] Ibid, R8/12.
CHSP requires a fee contribution for services offered if the eligible person “can afford to do so”. The person will not be required to pay the full fee as it is subsidised under the program so the client’s contribution is kept at a “reasonable and affordable level”. The fees are worked out based on the service provider’s client contribution policy which is expected to be made publicly available. The CHSP booklet states:[69]
To work out your fees, your service provider will consider the information you supplied during your home support assessment (with the RAS assessor) and may ask you questions about your financial situation. They will take into account your ability to pay and the number and type of services you are seeking.…
What if you can’t afford the fees?
Talk to your service provider about the services you will receive and how much you’ll be asked to contribute for each of them. Arrangements for clients who are unable to pay the requested contribution will be discussed before any services begin.
You will not be denied services if you are unable to contribute to the cost. Service providers will have their own arrangements for protecting those least able to contribute towards the cost of their care.
You have a right to appeal the amount you have been asked to pay. If you wish to question your fees, you should first discuss this with your service provider.
[underlining emphasis added]
[69] Ibid, R8/13.
A free advocacy service is also available under the Older Persons Advocacy Network (OPAN) which helps people access and interact with Commonwealth-funded aged care services. OPAN is funded by the Australian Government. The CHSP booked states that this service is free, independent, and confidential, and “helps older people get the information they need to make decisions, understand their aged care rights, and resolve problems and confusion”.[70]
[70] Ibid, R8/16.
Relevant to CPPM, the CHSP provides help to support persons living with hoarding behaviour or in a squalid environment who are at risk of homelessness or unable to receive the aged care supports they need. Such supports include “care planning”, “links to specialised support services” and “one-off clean ups”.[71]
[71] Ibid, R8/18.
CPPM told the Tribunal that he cannot afford to pay for support services or equipment, even if they are subsidised under the program. CPPM said he does not own any assets apart from his caravan and his car. He said he has $160 in the bank. The Tribunal notes that CPPM is in receipt of the DSP and does not pay any rent. The Tribunal acknowledges that CPPM is required to pay for food for his animals and for his medication and utility bills. However, CPPM has a modest lifestyle and a simple diet. The Tribunal finds that CPPM is able to afford to pay for fees to contribute toward the subsidised services available under the Other Programs, including the CHSP, albeit it is not CPPM’s preference to do so. The Tribunal also notes that the program refers to service providers having arrangements for clients who are unable to pay and that a person will not be denied a service if they cannot afford the cost (as stated in the CHSP booklet as referred to in paragraph [194]).
The Tribunal finds that CPPM may access Early Intervention Supports through the CHSP as it is satisfied that he would be eligible for this program and that if he is able to demonstrate that he cannot afford to pay for the subsidised fees, that he would not be denied the provision of the supports. Not dissimilar to the NDIS, assessments would be carried out on CPPM to develop customised supports plans for him, once a year. This would allow for additional supports to be added should CPPM’s impairments worsen over time.
The Tribunal concludes that the Early Intervention Supports for CPPM are more appropriately funded under the CHSP, rather than under the NDIS.

SWEP

One of the Early Intervention Supports is low-cost AT.
The VA&EP Guidelines issued in September 2020 refers to SWEP being one of the six service providers funded by the Victorian Department of Health and Human Services to deliver the VA&EP.[72] The VA&EP program aim is to provide eligible people with subsidised AT to enhance independence in their home and facilitate community participation.[73] The VA&EP Guidelines state that to be eligible for the VA&EP, applicants must meet the following criteria:[74]
(a)be a permanent resident of Victoria or hold a permanent protection visa or humanitarian visa or be an asylum seeker (CPPM meets this requirement); and
(b)require AT on a permanent or long-term basis for a health or ageing-related need (CPPM meets this requirement).
[72] Ibid, R9/44.
[73] Ibid, R9/45.
[74] Ibid, R9/45.
The VA&EP Guidelines specifically state that people with a disability who do not meet NDIS eligibility due to age, residency status or functional impairment level can also apply to the VA&EP.[75] If a person is already being funded under the NDIS, WorkSafe Victoria or the Transport Accident Commission, they will be ineligible for supports under the VA&EP.[76]
[75] Ibid, R9/45.
[76] Ibid, R9/46.
The VA&EP sets subsidy levels for different AT items and some items have an annual subsidy limit. The VA&EP will not provide subsidies for the cost of the assessment for the AT or home/vehicle modification.[77] The Tribunal notes CPPM needs have already been assessed by an OT who has recorded her recommendations in a functional assessment report. Under SWEP, an eligible person has access to the following bed accessories: self-help pole/bed blocks/bed raisers/bed extensions/bed rails/ and bed rail covers.[78] The maximum subsidy is $200 for each item. An eligible person also has access to shower stools and chairs and toilet seat raisers and extensions, with a maximum subsidy of $90.[79] An eligible person has access to specialised seating, including swivel bases for disability specific car seat (VicRoads-approved) to a maximum of $500, basic specialised seating to a maximum of $500, powered lift recliner chair to a maximum of $1,000 and chair raisers to a maximum of $200.[80] An eligible person has access to walking frames and walkers to a maximum subsidy of $300 and standing frames to a maximum subsidy of $550.[81] An eligible person has access to home modifications up to a maximum subsidy of $4,000 in their lifetime.[82]
[77] Ibid, R9/47.
[78] Ibid, R9/53.
[79] Ibid, R9/55.
[80] Ibid, R9/58.
[81] Ibid, R9/58.
[82] Ibid, R9/60.
The SWEP Guide states that the program will assist eligible people across Victoria who have a permanent disability and/or are frail aged with support to access equipment/AT and/or vehicle modifications.[83] The types of supports provided through SWEP include AT or modifications (as relevant to CPPM) to help with showering, bed accessories, home modification, specialised seating, walking, and standing aids and vehicle modifications.[84] The SWEP Guide states that their model recognises that many of their customers require 24/7 support 365 days a year if their AT fails and, as such, provides a unique and valued support service regardless of where someone lives in Victoria.[85]
[83] Ibid, R9/27.
[84] Ibid, R9/29.
[85] Ibid, R9/30.
The process for applying for AT or home modifications through SWEP is set out in the SWEP Guide.[86] The SWEP Guide states that they may be contacted by a person requesting AT or home modifications by email, mail or by telephone.[87] The first step is to complete SWEP eligibility form. Then, the person must request an appointment with a relevant prescriber. The prescriber will complete an assessment and decide with the person which AT or modifications the person requires. SWEP will consider the application once received and let the person know the outcome of the request for AT or home modification. For items over $500, SWEP will generally retain ownership of the AT.[88]
[86] Ibid, R9/31.
[87] Ibid, R9/32.
[88] Ibid, R9/31.
SWEP adopts a Priority of Access Framework which means that they will identify those persons in urgent need of AT and/or modifications and provide support to them as a priority. Other supports become available to persons as funds are available. This framework will take into account the physical safety of the client, mental and emotional health of the client, and independence for the client.[89] The Tribunal considers that CPPM would rate as a high priority under this Framework, particularly as having been assessed as a falls risk, and consequently is likely to receive supports as a priority.
[89] Ibid, R9/34.
The Tribunal finds that the SWEP would fund the low-cost AT that Ms MB and Ms PH have recommended for CPPM. The Tribunal finds that CPPM is eligible to receive AT and modifications through SWEP because Ms MB and Ms PH have recommended AT for him arising from his long-standing health conditions which are deteriorating with his age. The Tribunal recognises that the maximum subsidies provided under the SWEP may be exceeded by the purchase of the some of the AT that has been recommended for CPPM. The Tribunal considers it likely that CPPM would be prioritised under the Framework referred to above and would be able to receive the recommended AT in a timely manner. The Tribunal acknowledges that if CPPM were to obtain those items under the NDIS, he would not be required to pay any subsidy. However, this factor alone does not mean that it is more appropriately funded under the NDIS. The Tribunal notes some of the items recommended for CPPM by Ms MB and Ms PH would fall under the value of SWEP maximum subsidy. It is notable that the total number of AT items recommended for CPPM and their likely cost is not so high as to render them unaffordable by CPPM.

On balance, the Tribunal considers that the recommended Early Intervention Supports of AT and modification are not most appropriately funded under the NDIS and instead, are more appropriately funded under SWEP.

HACC-PYP

The Tribunal finds that CPPM would be eligible for supports under this program as he is aged under 65 and requires assistance with some activities of daily living as set out above, especially house cleaning and yard maintenance. The Tribunal finds that CPPM falls into the HACC “target group” which encompasses “older and frail people with moderate, severe or profound disabilities” and also younger people with such disabilities.[90]
[90] Ibid, R10/76.
As noted above, this service is now delivered by the SCHS. CPPM’s main concern about these services is that he understands that there is no one available to be able to undertake the services after the last person who was helping him had left the Council. The service delivery has not transferred to SCHS. The Tribunal is not persuaded that an eligible person wanting to receive services under this program would be unable to receive them due to a lack of resources. At best, there might an initial waiting period once a request is made but there is no firm evidence before the Tribunal that the services would not be provided after an initial waiting period.
The Tribunal considers that CPPM has not actively pursued this avenue of support open to him, because it is not his desire to have to pay a subsidised amount to receive support in the form of house cleaning or yard maintenance for which he is required to contribute to the hourly fees for such a service. Instead, it is CPPM’s preference that he receive these services for free.
The Tribunal was presented with some further evidence about the fees at the hearing. This evidence indicates that if CPPM were to obtain domestic services as part of community care services, he would be required to pay $6.30 per hour, and $12.60 per hour for yard/property maintenance. The Tribunal understands that CPPM is on the DSP with very limited sources of the other income (that is, according to his evidence, the modest fees he receives for cricket umpiring). He has other expenses such as his medications and the food for himself and his animals, as well as other living expenses such as to maintain the car, petrol, insurances, and utility bills. CPPM does not have to pay any rent.
Bearing in mind the limited number of hours that CPPM is likely to require to clean his small caravan/bathroom facilities and to periodically whipper snipper the grass around his caravan or to clean up the objects lying around his caravan in the yard, the Tribunal does not consider that the subsidies he would be required to pay under the HACC-PYP are amounts that he is unable to afford. The Tribunal acknowledges that if CPPM were to obtain those items under the NDIS, he would not be required to pay any subsidy. However, this factor alone does not mean that it is more appropriately funded under the NDIS. The Tribunal does not consider the gap to be onerous in CPPM’s case as he falls into the lower income bracket and so the contribution, he is required to make is modest.
On balance, the Tribunal considers that the recommended Early Intervention Supports in the form of house clearing and yard maintenance are not most appropriately funded under the NDIS and instead, are more appropriately funded under HACC-PYP.
In conclusion, the Tribunal finds CPPM does not meet the early intervention requirements by operation of s 25(3) of the NDIS Act because the Tribunal is satisfied that the Early Intervention Supports are not most appropriately funded or provided through the NDIS and are more appropriately funded or provided through the CHSP, SWEP and/or the HACC-PYP. It is not necessary for the Tribunal to proceed to consider whether CPPM satisfied the requirements under sub-ss 25(1) and (2) of the NDIS Act.

CONCLUSION

For the reasons set out above, the Tribunal is not satisfied that CPPM meets either the “disability requirements” under s 24 of the NDIS Act or the “early intervention requirements” under s 25 of the NDIS Act.
The Tribunal affirms the Decision Under Review because CPPM does not meet the access criteria under s 21 of the NDIS Act.

I certify that the preceding two hundred and seventeen (217) paragraphs are a true copy of the reasons for the decision herein of Senior Member K. Parker.

.....................................[sgd]...................................
Associate
Dated: 7 September 2023

Dates of hearing:

5, 13 and 18 July 2023 (by telephone at the request of the Applicant)

Applicant:

Self-represented

Respondent’s Solicitor:

Ms Sarah Thompson (solicitor advocate)

HWL Ebsworth Lawyers

Ms Crishelle Lopez (instructing solicitor)

HWL Ebsworth Lawyers

[2023] AATA 2845

7 September 2023

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